* Pursuant to 5 T H C IR

. R. 47.5, the court has determined that th i s

opinion s h ould not be published and is not precedent except under the limited

circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

June 9, 2005

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 04-50441

Summary Calendar

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ELIZABETH LOPEZ; FELIX VARGAS,

Defendants-Appellants.

Appeals from the United States District Court

for the Western District of Texas

USDC No. 2:03-CR-86-1-AML

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM: *

Elizabeth Lopez and Felix Vargas appeal their convictions

for possession of five or more kilograms of cocaine with intent to

distribute and importation of five or more kilograms of cocaine

into the United S tates. Lopez and Vargas were arrested after a

checkpoint inspection uncovered 8.81 kilograms of cocaine hidden in

the van in which Lopez and Vargas were traveling. Finding no error

as to either defendant, we AFFIRM.2 Lopez contends that the testimony of Jacky Gomez

concerning conversations that he had with Vargas during which

Vargas admitted fac ts surrounding the offense violated her Sixth

Amendment right to confront witnesses pursuant to Bruton v. United

States

, 391 U.S. 123 (1968). As Lopez did not object to the

admission of the allegedly improper testimony, review is for plain

error. S ee United States v. Cartwright

, 6 F.3d 294, 300 (5th Cir.

1993). The statements made by Gomez did not facially implicate

Lopez. Thus, B ruton is inapplicable. S ee United States v. Walker

,

148 F.3d 518, 522 (5th Cir. 1998).

Moreover, there was significant evidence from which the

jury could infer that Lopez was an active participant in the

operation, including her admitted use of false addresses to obtain

a Georgia driver’s license and to register and insure two different

vehicles, which she then drove from Georgia to Mexico; her

implausible explanation regarding the circumstances of both trips

to Mexico; the inconsistent statements she gave to agents at Eagle

Pass; her demeanor during the inspection; and the large quantity of

drugs found in the van. S ee, e.g.

, United States v . Villarreal

,

324 F.3d 319, 325 (5th Cir. 2003). Given the ample evidence

supporting the verdict, any Bruton violation would have been at

most harmless error. S ee United States v. Nutall , 180 F.3d 182,

188 (5th Cir. 1999).

Vargas argues first that the district court violated his

Sixth Amendment right of confrontation by not allowing him to ask3

Gomez what his attorney told him he could expect his punishment to

be without an agreement to cooperate. We review the district

court’s lim its on cross-examination for abuse of discretion.

United States v. Restivo , 8 F.3d 274, 278 (5th Cir. 1993). Vargas

was able to elicit from Gomez that he had entered into a plea

agreement with the Government and t hat, under the agreement, he

could receive a reduced sentence in exchange for testifying. The

jury heard ample testimony to allow it to infer that Gomez was

biased. Accordingly, there was no Sixth Amendment violation or

abuse of discretion. See id.

Finally, Vargas complains that the district court’s

delib erate ignorance instruction was improper because it was

appropriate only as to Lopez but did not exclude the possibility

that the jury would apply it to him. The parties dispute whether

Vargas pres erved this objection. However, even under a harmless

error standard, Vargas’s claim is without merit.

The district court’s charge was a correct statement of

the law. S ee United States v. Reissig

, 186 F.3d 617, 619 (5th Cir.

1999). Further, there was substantial evidence of Vargas’s actual

knowledge, including the testimony of Gomez as well as the evidence

of Vargas’s demeanor and actions during the inspection. Even if

the charge was incorrect, any error was harmless. S ee United

States v. Mendoz-Mendina , 346 F.3d 121, 134-35 (5th Cir. 2003).4 For the foregoing reasons, the judgment of the district

court is AFFIRMED

.